Overstayed Visa Waiver married to U.S Citizen

[Lisa011 6]

I came to the U.S when i was 12 years old with my parents, I've stayed in the U.S ever since

I recently got married to a u.s citizen we have been together for 5 years, We just filed my papers for me to become permanent resident and will soon recieve our interview appointment

I'm very scared that I will be denied? and get deported

I have a clean record never been arrested

If i were to be deported and voluntarly leave what are my options as far as my husband petitioning for me to come back to U.S

[*Yankee Love* 15]

I think i can relieve you,

my neighbors have a simular situation.. He´came from argentina when he was 5 years old, overstayed the visa ever since.

Since you are a child, you cant make your own decisions, they might let you get away with it.thats what happened to him, he married a us girl and is immigrated now,..

[Harpa Timsah 13,258]

Hi! Welcome to VJ!

Come on over to this forum (for people adjusting FROM non-K visas) and you'll find lots of discussion on the issue of VWP (Visa Waiver Program)and overstay.

http://www.visajourney.com/forums/forum/130-adjustment-of-status-from-work-student-tourist-visas/

The short story is that we're not sure what USCIS is doing with VWP overstays. Things are changing as we speak and what used to be the norm is not the norm any more. Normally, any overstay is forgiven when married to a US citizen, but VWP people waive their right to a hearing on entering and are considered immediately deportable once they overstay (this may be different for you because you were 12 years old). USCIS always "could" just deport VWP overstays and not adjudicate any petitions, but they didn't actually start to act on that ability until the last few years.

I must say that I am sorry for your situation. It is not your fault your parents brought you here at 12. But I am just going to stick with facts here. There is still a chance that you will be approved at your interview; it depends right now on which state you live in. Some recent cases of VWP overstay have been approved, and others have been put on indefinite hold pending some further clarification from the higher-ups at USCIS.

If you do get denied (I sincerely hope you don't) then you husband would file a CR-1/IR-1 visa and have to file 2 waivers, one for the deportation you would get, and another for the overstay. (Your time here from 12 years to 18 years does not count, but I am assuming you are older than 18).

Every case is unique, and I don't know what the decision will be, especially considering your age upon entry. A lawyer could argue that you did not knowingly waive your right to a hearing when you were 12 years old.

Hope the AOS goes well! Good luck!

Edited September 21, 2010 by Harpa Timsah

[Brother Hesekiel 2,235]

Lisa,

"When you were 12 years old," doesn't tell us much. Maybe you are now 52 years old now, like me, in which case the VWP didn't exist when you were 12, back in 1970.

The key here is to know a) your current age and b) whether you arrived with a B2 or as part of the Visa Waiver Program.

Edited September 21, 2010 by Just Bob

[milimelo 4,193]

Moving to AOS from tourist, student, work visa.

[Lisa011 6]

Thank you everyone for the positive posts

its a big relief to hear about others peoples cases similar to my situation that have been approved.

@Harpa Timsah- Do you know what USCIS offices in the u.s have been denying people with this situation?

I came to the us when i was 12 in 2000

now i'm 21 years old,

I honestly did not know i was here illegally until about 17 years of age.

I came here as a child Graduated school here, the U.S is the only home i know of being that i came here at such early age.

[Harpa Timsah 13,258]

@Harpa Timsah- Do you know what USCIS offices in the u.s have been denying people with this situation?

I don't have a full list, maybe Jim knows... I know a few states... what state are you in?

[Brother Hesekiel 2,235]

Lisa,

1) you have 2 identical posts running right now. Moderator please combine.

2) You don't have your terminology straight.

An illegal alien is somebody who entered the US without permission, without inspection (EWI), and his presence is undocumented to the US Government. That's a crime, comparable to you coming home and there's a strange guy in your house who entered through the back door and engages in funny business.

An EWI can never adjust status, not even by marriage to a US citizen.

You, in contrast, entered the US with permission, with inspection, and the US Government knows about you being here. You just overstayed, much like you had been invited to a party and are still hanging around when it comes to an end. That's a civil infraction, and the punishment for it is . . . nothing. There is no punishment for it, but once the hosts realizes that you are still in his house and asks you to leave, you have to. Not a punishment, just common sense.

3) The US Government understands that children have really no choice when parents drag them along. Therefore, illegal presence is not accumulated until 180 days after the 18th. birthday. I have no clue why you would claim you became illegal at age 17, but that's not true. Your overstay started at age 18-1/2 and had you left by then everything would be cool.

4) Until a few weeks ago, I would have told you that you don't have anything to worry about. Lately, however, the whole AOS from VWP has become somewhat of a big unknown. It may work, or it may not work. If it won't work, you'll be ordered deported with a 10-year ban attached, which would need to be overcome by two waivers, none of which is easy to get.

In your situation, all you can really hope for is that you get lucky. There's really no alternative short of waiting for comprehensive immigration reform.

[MarieandRob 0]

Thank you everyone for the positive posts

its a big relief to hear about others peoples cases similar to my situation that have been approved.

@Harpa Timsah- Do you know what USCIS offices in the u.s have been denying people with this situation?

I came to the us when i was 12 in 2000

now i'm 21 years old,

I honestly did not know i was here illegally until about 17 years of age.

I came here as a child Graduated school here, the U.S is the only home i know of being that i came here at such early age.

I know exactly how you feel. My family and I moved here in 1991. I'm 30 now. I got married a year and a half ago and recently filed for AOS. We had our interview today and unfortunately for us, the IO didn't make a decision. She had a problem about me working when I'm not supposed to be. Our lawyer explained to her that it's supposed to be forgiven but she didn't budge. She wants to discuss it with her supervisor first. So now we are waiting for the results. I honestly don't know what's going to happen. Our lawyer told us not to worry but how can we not? Just like you, the U.S is the only home I know. I grew up here. But its out of our hands now. It really depends on who you get on the day of your interview. Good luck on everything. Try to stay positive and don't lose hope. That's all I've been doing.

[Boiler 43,429]

Just to recap:

12 to 18 does not matter.

18 you started accumulating illegal presence so you now have a 10 year bar if you leave and seek to re enter.

Until recently adjusting in such circumstances would not have been a major issue. Things have changed, not something to contemplate without a lawyer. You may be lucky, you may be not.

[Myopia 93]

I know exactly how you feel. My family and I moved here in 1991. I'm 30 now. I got married a year and a half ago and recently filed for AOS. We had our interview today and unfortunately for us, the IO didn't make a decision. She had a problem about me working when I'm not supposed to be. Our lawyer explained to her that it's supposed to be forgiven but she didn't budge. She wants to discuss it with her supervisor first. So now we are waiting for the results. I honestly don't know what's going to happen. Our lawyer told us not to worry but how can we not? Just like you, the U.S is the only home I know. I grew up here. But its out of our hands now. It really depends on who you get on the day of your interview. Good luck on everything. Try to stay positive and don't lose hope. That's all I've been doing.

Yea, Great Advise. Que Sera Sera.

[Bobby+Umit 161]

Adverse factors, such as overstay, preconceived intent, unauthorized working, are not "forgiven" automatically, they are taken into account when they determine the persons case. (at their discretion)

In exercising its discretion, USCIS will balance the adverse and favorable factors concerning the alien's application.

To many adverse factors and they can deny the application. In most cases, one adverse factor does not rise to the level of getting a denial - however there are some cases where one adverse factor was enough ( such as "intent to use the marriage for immigration purposes only") - but you really have to work to get that.

Personally - I do not like using the word "forgiven" in this way, I prefer "overlooked"

[Darnell 8,478]

hey Lisa - when you get a mo - check out http://www.immigrate2us.net

Good Luck !

[JimVaPhuong 4,863]

Adverse factors, such as overstay, preconceived intent, unauthorized working, are not "forgiven" automatically, they are taken into account when they determine the persons case. (at their discretion)

In exercising its discretion, USCIS will balance the adverse and favorable factors concerning the alien's application.

To many adverse factors and they can deny the application. In most cases, one adverse factor does not rise to the level of getting a denial - however there are some cases where one adverse factor was enough ( such as "intent to use the marriage for immigration purposes only") - but you really have to work to get that.

Personally - I do not like using the word "forgiven" in this way, I prefer "overlooked"

I agree that "forgiven" is not the correct word to use. It implies that the intending immigrant has somehow offended the immigration officer, and now needs the forgiveness of the IO in order to get a green card. I'd go even farther then "overlooked" and say that it's "irrelevant".

Normally, being out of status or working without authorization would prevent someone from adjusting status - dead stop. The INA specifically says these will disqualify an applicant out of hand. The INA also says that these specific disqualifiers don't apply to an immediate relative of a US citizen. It really has nothing to do with whether the IO has the authority to forgive or not forgive. The INA says it's not a relevant factor.

Now, if USCIS is changing their interpretation of the INA such that overstay and/or working without authorization are no longer irrelevant, but simply not an automatic disqualifier, then that would be news indeed. A great many K1's don't file for AOS until after their I-94 has expired because there has always been an assumption that the overstay could not be used to deny their AOS.

[MarieandRob 0]

Sorry I didn't mean to use the term "forgiven". I didn't know the correct term. I'm so nervous about our case. I hope we get it approved.